2. The provisions of the ICCPR regarding preventive detention

The ICCPR guarantees the right of the individual to liberty. Article 9(1) provides inter alia that everyone has the right to liberty. This is based on the Universal Declaration on Human Rights where Article 9 of the same provides that “No one shall be subjected to arbitrary arrest, detention or exile”.

What must be stated from the outset is that the ICCPR does in fact provides for exceptions to the general rule, and these exceptions clearly includes situations of preventive detention. The Human Rights Committee (“HRC”) itself conceded that “…administrative detention may not be objectionable in circumstances where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner… .” .

In this section, the relevant provisions in the ICCPR will be examined to set out the extent and the limits to preventive detention that is permitted therein. The relevant provisions considered here are Articles 9, 10, 7, 14 and 17 . A brief outline of this section is as follows:-

1. When preventive detention is allowed (Article 9(1))

2. Rights of persons detained:-

(a) Right to be informed of reasons of detention (Article 9(2))

(b) Right to take proceedings before a Court (Article 9(4)). This includes the right to equality before the Courts (Article 14);

(c) Treatment of persons detained:-
(i) Right to be treated with humanity and with respect for the inherent dignity of the human person (Article 10);
(ii) Right not to be subject to torture, inhuman or degrading treatment or punishment (Article 7);
(iii) No interference with family life (Article 17);

(d) Right to compensation for unlawful detention (Article 9(5)).

2.1 When is preventive detention allowed

Article 9(1) provides as follows:-

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Helena Cooke was of the view that this prohibition against arbitrary and unlawful detention is among the most fundamental of all human rights .

The HRC in their General Comment no. 8 makes it clear that Article 9 is applicable to all forms of detention. In paragraph 1 of the General Comment, it is stated that “…paragraph 1 (of Article 9) is applicable to all deprivations of liberty, whether in criminal cases or in other cases… .”.

Further, for avoidance of any doubts for this essay, paragraph 4 of the said General Comment states that “…if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions”.

As such, under Article 9(1), preventive detention is permitted if it is not arbitrary and if it is based on grounds and procedures established by law.

2.1.1 Arbitrary

According to the case of Hugo van Alphen v. the Netherlands , the burden to show that the detention is not arbitrary is on the State. The HRC in that case went on to explain “arbitrariness” based on the drafting history of Article 9. It held as follows in paragraph 5.8:-
“‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must further be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime”

Based on this explanation, a detention is considered to be arbitrary if it is unreasonable or unnecessary. The State must therefore be able to show that the detention was appropriate, just and predictable.

The HRC have found a violation of Article 9(1) when the arrests and detentions were arbitrary . It does not matter if the detentions were on grounds and procedure established by law.

2.1.2 Grounds and procedures established by law

Article 9(1) clearly states that both the grounds of detention as well as the procedures must be established by law. So not only must there be a legal justification to detain a person, the manner in which such person is detained must be provided for in law.

In the case of Clifford McLawrence v. Jamaica , the HRC held that “…the principle of legality is violated if an individual is arrested or detained on grounds which are not clearly established in domestic legislation” .

If domestic law does not justify the reasons for detention, or if one is detained not in accordance with the procedures set out by domestic law, Article 9(1) will be violated.

But does “established by law” only refer to domestic law?

The Office of the High Commissioner for Human Rights in cooperation with the International Bar Association referred to the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (“ECHR”), in particular, Article 5 of the ECHR to help understand what is meant by “established by law” .

Article 5 of the ECHR provides that “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…”.

In the European Court of Human Rights’ decision of Case of Steel and Others v. the United Kingdom , the Court held as follows:-

“the expressions ‘lawful’ and ‘in accordance with a procedure prescribed by law’ in Article 5 § 1 stipulate not only full compliance with the procedural and substantive rules of national law, but also that any deprivation of liberty be consistent with the purpose of Article 5 and not arbitrary (...). In addition, given the importance of personal liberty, it is essential that the applicable national law meet the standard of ‘lawfulness’ set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in all circumstances, the consequences which a given action may entail.”

Therefore, applying the same reasoning to Article 9(1), “established by law” does not just mean that the detention is in compliance with the relevant domestic law of a State party but the detention must be in compliance with the standard of lawfulness set by the ICCPR.

Further, in the HRC’s decision in A v. Australia held that by “…stipulating that the court must have the power to order release ‘if the detention is not lawful', article 9, paragraph 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant. This conclusion is supported by article 9, paragraph 5, which obviously governs the granting of compensation for detention that is ‘unlawful’ either under the terms of domestic law or within the meaning of the Covenant” . As such “lawful” in Article 9(4) and (5) means that it must be in accordance with the standard of lawfulness set out in the ICCPR.

Based on A v. Australia, it is submitted that “established by law” in Article 9(1) has the same meaning as “lawful” in Article 9(4) and (5). It would not make sense if the word “lawful” in Article 9(4) and (5) has a wider meaning than “established by law” in Article 9(1). If “established by law” only refers to domestic law, it could result in an embarrassing situation where a detention is found to be established by law in accordance with Article 9(1) but a Court can order the release from detention under Article 9(4) because the detention is not lawful in accordance to Article 9(4).

Even if it may be argued that the case of A v. Australia is not applicable to Article 9(1) and that the decision of the European Court is not binding on the provisions of the ICCPR, it is submitted that it would not make a difference as in any event, any detention carried out by a State party of the ICCPR should be in compliance with the standards of lawfulness set out in the ICCPR.

There are 3 hurdles before preventive detention can be allowed:-
 It must not be arbitrary, i.e. not unreasonable and not unnecessary;
 It must be on grounds and procedures established by domestic law;
 It must be in compliance with the standard of lawfulness set out in the ICCPR.

2.2 Rights of person detained

2.2.1 Right to be informed of reasons of detention (Article 9(2))

Article 9(2) provides that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”.

The first question that arises is whether this is applicable to cases of preventive detention. While the words “informed of any charges” seem to imply that this section refers specifically to arrests made in a criminal case, General Comment No. 8 states in paragraph 4 that in cases of preventive detention, information of the reasons of detention must be given in accordance to Article 9(2).

The next question is how much information must be given to satisfy the requirement in this provision. The HRC in the case of Adolfo Drescher Caldas v. Uruguay held that information given without the substance of the complaint against the person detained is not sufficient and is a violation of Article 9(2). The reason behind this according to the HRC is because “…the Covenant requires that anyone who is arrested shall be informed sufficiently of the reasons for his arrest to enable him to take immediate steps to secure his release if he believes that the reasons given are invalid or unfounded” .

Therefore, in Essono Mika Miha v. Equatorial Guinea , the HRC held that being informed that the detention was made by the order of the President is insufficient and discloses a violation of Article 9(2).

While the ECHR provides that the language used to inform the person detained must be in a language that he understands, the ICCPR is silent on this. Having said that, it is implied that the language used must be understandable to the person detained as the rationale for informing him is to enable him to take whatever steps to secure his release.
The final question is when the reasons must be informed. The provision itself states that it must be done “…at the time of arrest”.

However, in the case of Michael and Brian Hill v. Spain , the detainees alleged that they were held for seven and eight hours respectively before they were informed of the reasons of their arrest. Nevertheless, the HRC did not find a violation of Article 9(2) based on the circumstances of the case. The State contended that “…police formalities were suspended from 6 a.m. until 9 a.m., when the interpreter arrived, so that the accused could be duly informed in the presence of legal counsel. Furthermore, the interpreter was not an ad hoc interpreter but an official interpreter appointed according to rules that should ensure her competence” .

It is submitted therefore that if the reasons were not informed immediately at the time of arrest but within a reasonable time, there would be no violation of Article 9(2). As to what can be considered a reasonable time will depend on the facts of the case and the circumstances surrounding the detention.

In the case of Deon McTaggart v. Jamaica , the HRC held that since the detainee met his solicitor within a week of the arrest, “it was therefore highly unlikely that neither the author nor his Jamaican counsel were aware of the reasons for his arrest”. In his the partly dissenting opinion, Mr. Martin Scheinin was of the view that as the State party had failed to answer in the proper way the detainee’s allegations of not being informed of the reasons of his arrest, there is a violation of Article 9(2). It is submitted that this view is preferable.

 The reasons of arrest must be informed to the detainee
 There must be sufficient information to enable the detainee to challenge his detention if he believes it to be unlawful
 It must be informed at the time of arrest, or if not possible, within a reasonable time.

2.2.2 Right to take proceedings before a Court (Article 9(4))

Article 9(4) provides as follows:-

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

General Comment no. 8 of the HRC leaves no doubt that this provision applies in cases of preventive detention . Examples of such proceedings are habeas corpus and amparo proceedings.

Helena Cook was of the view that this provision “…may well be the only judicial remedy available to administrative detainees…” as the provision under Article 9(3) which provides that a detainee be brought promptly before a judge or an authorised officer only applies in criminal proceedings.

As such, the importance of this provision cannot be overstated. This is all the more so as it could be the only way a detainee can complain about any abuses while in detention.

The first thing to note about this provision is that the detainee is entitled to take proceedings before a court. Unlike Article 9(3), there is no obligation on the part of the state to bring the detainee to court. The proceedings must be initiated by the detainee. In the case of Stephens v Jamaica , the HRC found no violation of Article 9(4) when the detainee could have but did not do so .

However, the state is obliged “…to make available to the person detained the right of recourse to a court of law” :-

• In the case of Eric Hammel v. Madagascar , the HRC found a violation of Article 9(4) as the applicant was “…unable to take proceedings before a court to determine the lawfulness of his arrest” ;

• Further, the HRC in Berry v Jamaica held that failure to ensure access to legal representation results in a violation of Article 9(4) since the detainee “…was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention” ;

• If a person is effectively barred from taking such proceedings, there is a violation of Article 9(4). This was held in Guillermo Ignacio Dermit Barbato and Hugo Haroldo Dermit Barbato v. Uruguay where the detainee was held incommunicado;

• In Mario Torres v. Finland , the detainee was first detained by orders of the police for several days until the detention is confirmed by the relevant Minister. He could only challenge the detention after the minister confirms the detention and therefore he could not have challenged the detention under the police orders in court. The HRC found the detention before the Minister’s confirmation to be a violation of Article 9(4) .

The next thing to note is that the provision specifically mentions proceedings before a court only and not merely an officer authorised to exercise judicial power as in the case of Article 9(3). It must be a court of law with “a judicial character” . As such, in the case of Mario Torres v. Finland , it was held that the opportunity for the detainee to appeal to the relevant minister does not satisfy the requirement of Article 9(4). It went further to hold that Article 9(4) “…envisages that the legality of detention will be determined by a court so as to ensure a higher degree of objectivity and independence in such control” .

Further, the court must be one which not only has the jurisdiction to decide on the lawfulness of the detention, the court must also be empowered to order the release of the detainee if it finds the detention to be unlawful. As already discussed above, the standard of “lawfulness” in this provision is the standard of lawfulness under the Convention, and not the domestic law. Helena Cook also was of the view that “lawfulness” should encompass both procedural and substantive elements . This would mean that the court should be able to investigate whether the procedures were correct as well as examine the reasons behind the detention.

As to the requirement that the court may decide “without delay”, it was held in Torres v. Finland that it should be as “…as expeditiously as possible…” and “…be assessed on a case by case basis” .

Finally, the right to take proceedings before a court of law will surely include the right to a fair hearing. While Article 14 deals mainly with criminal hearings, it does provide that “All persons shall be equal before the courts and tribunals”.

 The State has no obligation to bring the detainee to Court. However, the State is obliged to make available the right to the detainee
 The proceedings are to be taken before a Court
 It must be a Court of law with judicial character
 It must be a Court with the jurisdiction to decide on the lawfulness of the detention
 It must be a Court with the power to order the release of the detainee if the detention is found to be unlawful
 The State must guarantee a right to a fair hearing

2.2.3 Treatment of persons detained

(a) Negative and positive

Article 7 provides as follows:-

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation

Article 10(1) provides as follows:-

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

In its General Comment , the HRC state that Articles 7 and 10 are related in that “…(t)he prohibition in article 7 is complemented by the positive requirements of article 10, paragraph 1, of the Covenant”.

The rights regarding the treatment of those detained are extremely important. In Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyer , it was observed that the detainee “… is virtually cut off from outside life, and thus also vulnerable to treatment violating his or her rights. The continuing widespread use of torture and other inhuman or degrading treatment or punishment of these categories of people, whose cries for help in moments of pain can be heard by nobody except fellow inmates, constitutes an intolerable insult to human dignity”.

(b) Article 7

The HRC observed that the provision in Article 7 does not contain any definitions of the terms therein , not do they view that there is any necessity to draw up a list or to “…establish sharp distinctions between the different kinds of punishment or treatment” .

The Committee explained that the aim of article 7 “…is to protect both the dignity and the physical and mental integrity of the individual ”. Regarding the different terminology used, “…the distinctions depend on the nature, purpose and severity of the treatment applied” .

Examples of where a violation of Article 7 has been found includes threats , beatings, assassination of fellow detainees , not allowed to see a doctor , injuries resulting from the application of electric discharges , blindfolded and dunked in a canal .

(c) Article 10(1)

The HRC in its General Comment makes it clear that this provision applies to those in preventive detention . It went on to state that “…(t)reating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule” and that this rule must be applied with any form of discrimination .

Examples of situations where a violation of Article 10(1) has been found include confined to a 2-metre-square cell for 22 hours each day, and remained isolated from other men for most of the day; he spent most of his waking hours in enforced darkness, had little to keep him occupied, and was not permitted to work or to undertake education , a lack of bedding and furniture, as well as a shortage of toiletries like soap, toothpaste, toilet paper etc., no integral sanitation in the cells, open sewers and piles of rubbish, no doctor available, being kept in a small cell most of the day in darkness , only given “a piece of sponge and old newspapers” to sleep on, given “food not fit for human consumption”, “treated with brutality by the warders whenever complaints were made” , not given food , denied recreational facilities , a “…mock execution set up by prison warders and the denial of adequate medical care”

(d) Solitary confinement

The HRC noted that “…prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7...” of the Covenant.

The HRC found held that solitary confinement of detainees to be a violation of both Article 7 and/or 10(1) .

However it is interesting to note that in A. Vuolanne v. Finland , it was held that there was no violation of Article 7 nor of Article 10. In that case, it was alleged that the detainee was “… locked in a cell of 2 x 3 metres with a tiny window, furnished only with a camp bed, a small table, a chair and a dim electric light”. The HRC was of the view that it did not appear the solitary confinement produced any adverse physical or mental effects on the detainee. Further, it had not been established that the detainee “…suffered any humiliation or that his dignity was interfered with apart from the embarrassment inherent in the disciplinary measure to which he was subjected”.

This decision seems to imply that solitary confinement is therefore permissible, depending on the physical and mental make-up of the detainee. The problem will be who is allowed to make the decision on when it is allowed and when it is not. Further, it appears to suggest a subjective test and places the burden to prove it on the detainee. It is submitted that it should be an objective test i.e if a person is detained in such a way, would it cause humiliation and embarrassment to a reasonable person or not.

(e) Incommunicado

The HRC is of the view that State parties should implement provisions that prohibit incommunicado detention . The Committee have held that a detainee being held incommunicado is a violation of Article 7 or of both Articles 7 and 10 .

(f) Contact with family members

Closely related to the issue of being detained incommunicado, the HRC have also held that interference with family life constitutes a violation of Articles 7 and 10 .

Artilce 17(1) provides that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…”.

In the case of M. A. Estrella v. Uruguay , the HRC found that the measure of control and censorship over prisoners’ correspondences was a violation of Article 17 read with Article 10(1).

(g) Prevention

While not stated explicitly in Article 7, the HRC is of the view that to “…guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends” . State parties are also to “…ensure that any places of detention be free from any equipment liable to be used for inflicting torture or ill-treatment” .

It is submitted that one of the best prevention is to have in place an effective system of remedying such violations. Would-be violators would not think twice if such system is not available for the detainee.

The HRC states that Article 7 should be read together with article 2(3) regarding the State’s undertaking to ensure an effective remedy to those whose rights have been violated. It goes on to explain that this means that “…the right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law” and that “complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective” .

The HRC has also instructed State parties to disseminate the relevant information concerning the ban on torture etc. to the population at large . They have also emphasised inter alia the importance of instructing and training personnel who have authority over those detained

 Detainees should be treated humanely and should not be subjected to torture or to cruel, inhuman or degrading treatment or punishment
 Prolonged solitary confinement may amount to a violation of Article 7
 Incommunicado detention and interference with family life are violations of Articles 7 and 10(1)

2.2.4 Right to compensation for unlawful detention (Article 9(5))

Article 9(5) provides as follows:-

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

General Comment no. 8 of the HRC leaves no doubt that this provision applies in cases of preventive detention .

Once the detention is found by a court of law in accordance with Article 9(4) to be unlawful, the person wrongly detained is entitled to compensation. This provision is further supported by Article 2(3) where State party undertakes to ensure that persons whose rights are violated shall have an effective remedy.

The main problem is that while the HRC may be of the view that compensation is to be paid pursuant to Article 9(5) , it has no authority to enforce it.

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